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FREE EXPRESSION

PROTECTING YOUR RIGHTS Four Canadian defenders of free expression discuss their work—and explain how you can get involved

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Produced by Laura Tribe

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highlights a number of ways that free expression is under threat in Canada. But it’s not hopeless—some amazing people across the country are working to protect your rights. The Canadians featured here are part of the movement to defend online privacy, ensure equal access to information, protect your legal right to information and more.

part of “the Battle for the Free Internet”—which is huge and complex, and includes our opposition to the expansion of police and intelligence agencies’ powers to gather digital communications data without appropriate oversight and standards. We have also launched a historic lawsuit against Communications Security Establishment Canada (CSEC) (Canada’s version of the NSA) for spying on Canadians. And, of course, traditional, non-digital protest and demonstration requires constant defending. Our recent work includes launching complaints against CSIS and the RCMP for spying on opponents of the Enbridge Northern Gateway Pipeline project. It’s a message that has to be endlessly reiterated: volunteers gathered in church basements to handpaint protest signs equals democracy, not a national security threat.

What is the biggest threat to free expression in Canada? The vast chill on free expres-

MICHEAL VONN

Policy Director, British Columbia Civil Liberties Association (BCCLA)

What projects are you working on? Freedom of expression is at the core of BCCLA’s mandate. A big piece of our recent work is 34 CJFE REVIEW 2014

sion created by pernicious and ubiquitous spying. It is rapidly becoming apparent that advocating for human rights or environmental causes is going to get you spied on. Being spied on is intimidating. Granted, it hasn’t stopped Cindy Blackstock’s advocacy for aboriginal children. But what does Cindy’s case tell us about where the bar is set? Advocating for children! Ordinary people who want to voice concerns, who want to stand up for a cause, are chilled by the knowledge that they are likely to be spied on and viewed as a “threat.” Campaign

organizers, whistleblowers, journalists working with confidential sources—all the people we rely on to help us fight and expose injustice are undercut and threatened by this surveillance.

Can you tell us about BCCLA’s lawsuit against CSEC? CSEC is Canada’s “signals

intelligence” agency. CSEC works with the NSA, about which we have learned so much thanks to Edward Snowden. CSEC is supposed to focus its surveillance on “foreign” intelligence gathering, but it has vast powers to spy on the communications of Canadians. It gets its specific authority to do its spying from the Minister of National Defence, and the minister’s authorizations are secret. Only one commissioner reviews CSEC’s activities to see if it’s operating lawfully— sometimes years after the fact. Essentially, what you have is a system for mass surveillance conducted in almost total secrecy. No judge, no warrants, not even a parliamentary committee keeping track. We say this is a violation of Canadians’ constitutional rights to privacy and free expression.  

What is essential reading for understanding the link between surveillance and free expression?

The Guardian is your go-to newspaper for all things Snowden. Bruce Schneier’s blog (Schneier on Security, schneier.com) will help explain all the geeky parts and answer questions you didn’t even know to ask. Also Susan Landau’s Surveillance or Security?: The Risks Posed by New Wiretapping Technologies. And, if you’d like to hear the long version of what eroding privacy means for democracy, I spoke about that at Simon Fraser University, and there’s a handy podcast at bit.ly/mvonn.

Who else is doing important work in this area? The

wonderful OpenMedia has spearheaded a broad-based coalition from across the political spectrum to push back against online spying. Canada is Interviews have been edited for length.

also home to amazing academic work in privacy and surveillance, including Michael Geist and the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic, scholars working with The New Transparency Project and the University of Toronto’s terrific Citizen Lab. Canadian privacy commissioners have also been critical players in this work. People and organizations in almost every country in the world are contributing to this work, which is emerging as one of the most pressing human rights issues of the 21st century.

STEVE ANDERSON Founder and Executive Director, OpenMedia

What are you working on?

Our Protect Our Privacy Coalition involves more than 50 major organizations from across the political spectrum. We formed the coalition following stunning revelations about how CSEC is conducting blanket surveillance against law-abiding Canadians— tracking and storing information that can be hugely revealing about our private lives. We are also very concerned about the Trans-Pacific Partnership (TPP). Its extreme new copyright rules would make the Internet far more censored, expensive and policed. We’re working with a large international coalition to put a stop to the

TPP’s Internet censorship plan. We also recently launched a nationwide consultation on how to build a more Connected Canada, to ensure affordable alternatives to the giant telecom conglomerates. Canadians pay some of the highest prices in the industrialized world, and that needs to change. Having so much power in the hands of Big Telecom stifles the ability of independent and alternative voices to freely express themselves.

What’s the biggest threat to free expression in Canada? I’m most worried about the

chilling effect that blanket government surveillance can have on people expressing themselves. I firmly believe surveillance of law-abiding residents equals censorship. People’s behaviours change when they know they’re being watched. We need to avoid a situation where journalists and citizens selfcensor because they’re worried about who’s keeping track of them. We also know that giant media conglomerates, particularly in the U.S., are trying to force Canada into adopting extreme copyright rules that would severely restrict people’s ability to express themselves online. The Internet is all about open sharing, collaboration and new forms of expression. Ironically, copyright was first invented as a way to encourage innovation and expression; yet now old industry interests are using it as a battering ram to stifle creativity online and prop up outdated business models. We’re fighting back with a crowdsourced vision for sharing and collaboration in the 21st century at OpenMedia.org/ crowdsource.

What has been OpenMedia’s biggest success to date? Our biggest success regarding

free expression is defeating Vic Toews’ online spying bill, C-30. We rallied more than 150,000 Canadians to speak out and say that warrantless, invasive and costly spying is unacceptable. It’s rare for a majority government not to get their way on proposed legisla-

tion—but we showed it is possible to win when Canadians work together. Now we’re determined to do likewise with Justice Minister Peter MacKay’s new online spying bill, C-13. We know the government is already spying on us through CSEC, and they’re trying to cover their tracks by granting immunity to telecom providers who hand them our private information without a warrant. Canadians care about their privacy, and opposition to MacKay’s bill is spreading fast.

OpenMedia was working to protect Canadians’ digital privacy long before the Snowden revelations. Have you noticed a change in Canadians’ perception of surveillance and privacy in the past year? Absolutely. We’ve seen a steady stream of revelations over recent months, and more and more Canadians are taking notice. We see this with the numbers joining our Privacy campaign, for example—now more than 32,000. Most people had no idea that mass government surveillance of law-abiding citizens is taking place—and when people find out, they’re taking action to help put a stop to it. It’s becoming clearer just how out of control government spying is, and for many the implications on our basic freedoms are coming into focus for the first time.

Can you recommend any reading on these issues?

OpenMedia produced an infographic on how Canadian government spying could affect you. You can find it at openmedia.ca/csecandyou. Ron Deibert’s book Black Code: Inside the Battle for Cyberspace really lifts the lid on how powerful interests are trying to shape the Internet to serve them and not citizens. It’s a real wake-up call to everyone who cares about the Internet’s future, and is well worth a read.

What advice would you like to give Canadians?

Believe in your power to change things CJFE REVIEW 2014 35


for the better. The challenges we face can seem so huge that people feel disempowered, but when Canadians stand up and work together, we can push back and win. Your MPs need your vote, and nothing scares them more than local voters organizing against them. Send your MP a message about spying at openmedia.ca/stand, and encourage others to do the same.

TOBY MENDEL

Executive Director, Centre for Law and Democracy (CLD)

Canada continues to drop on CLD’s Right to Information (RTI) Rating. Why do you think this is? Many of the countries that have adopted access to information laws in recent years score above Canada on the RTI Rating, thereby pushing its position down. As the number of countries with RTI laws has grown from 89 in 2011 to 97 today, many of those eight new countries have scores above that of Canada. At the same time, other countries have amended their laws to make them stronger. A key problem with Canada’s Access to Information (ATI) law is that it has hardly been amended since it was first adopted in 1982. While Canada was a global leader at that time, it has not advanced since then, while other 36 CJFE REVIEW 2014

countries have. We have also made some adjustments in Canada’s score due to standardization changes, which reduced its score somewhat.

How does Canada’s performance on the RTI Rating differ from its actual performance on managing ATI requests?

The RTI Rating only measures the legal framework for RTI, not how countries implement those laws. However, we have observed that while there is no linear correlation between score and performance—inasmuch as some high-scoring countries have abysmal implementation records— it is difficult for countries with weak laws to perform very well. Our own experience suggests that this is the case for Canada, and this is corroborated by other studies. A number of studies on implementation, for example, have indicated that Canada scores behind peer group countries like the United Kingdom, Australia and New Zealand. It is very significant that Canada is only now starting to put in place systems for making electronic requests—which obviously hugely facilitates the requesting process—whereas much poorer and less developed countries, like India and Mexico, have had these systems in place since the beginning of their RTI laws.

Many Canadians will never file an access to information request. Why should they care about our ATI system? That is an interesting observation and question. All Canadians benefit from RTI even if they do not actually make requests. When a request leads to information that reveals wrongdoing or corruption, this helps create an environment that militates against this sort of behaviour, which is clearly to the benefit of all Canadians. It was, for example, a series of ATI requests that revealed the Quebec sponsorship scandal, which ultimately led to the Gomery Com-

mission and arguably the downfall of the Liberal government. In other cases, requests lead to changes in the proactive disclosure of information, which then benefits a far greater number of people. For example, following a series of requests in Nova Scotia, spending by members of the legislative assembly is now posted online monthly, available to everyone without the need to file an access to information request.

Which provinces or territories that stand out as leaders in this area? Which have the most room for improvement?

encoded in statutory law. Canada does have whistleblowing legislation, in the form of the Public Servants Disclosure Protection Act, but this law has several shortcomings, including the wholesale exclusion from its scope of Canada’s Armed Forces and the Canadian Security Intelligence Service (CSIS). Finally, there have been abuses of freedom of assembly, and of freedom of expression, in the context of several demonstrations in Canada, as well as several very unfortunate, if short-lived, pieces of legislation extending police powers during demonstrations.

According to CLD’s report, Failing to Measure Up: An Analysis of Access to Information Legislation in Canadian Jurisdictions (bit.ly/cldreport), British Columbia has the best ATI law in Canada, scoring 97 on the RTI Rating, while Canada (federally) ties for bottom place along with Alberta and New Brunswick (all with 79 points), with Saskatchewan, Quebec, Nunavut and the Northwest Territories not far ahead. However, British Columbia’s score would just place it 30th in the world, which is not exactly stellar. At the same time, as noted, the RTI Rating is a formal measure of the strength of the legal framework, which does not assess the quality of implementation efforts.

What are the biggest threats to free expression in Canada? Other than

RTI, which is clearly a priority issue, I would point to a number of weaknesses in the overall framework for freedom of expression. Defamatory libel remains a criminal offence, which is inherently problematical, and almost no Canadian jurisdictions have legislation against SLAPPs (strategic litigation against public participation)— cases brought not to recover damages but to silence people. The law on protection of sources has been developed through jurisprudence, which necessarily leaves some gaps, and the whole area would benefit from being

Alexander “Sandro” Lisi, a friend of Toronto mayor Rob Ford; and the Senate scandal.

Can you explain what an ITO is? An Information to Obtain, or ITO, is an affidavit sworn by a police officer submitted to a judge in order to persuade the judge to issue a search warrant or a production order [which requires a person to hand over documents within a specified time]. Since these are orders sanctioning highly intrusive actions by the police, the ITO must disclose to the judge the status of the investigation and the relevance of the information sought through the issuance of a search warrant or a production order. Much of the debate over what to release to the public focuses on the need to protect confidential sources and to protect the fair trial rights of the accused.

Why is it so important that the public has access to court documents?

PETER JACOBSEN

Founding partner of Bersenas Jacobsen, CJFE Board member and Canadian Issues Committee Chair

What projects are you currently working on?

In addition to our defence and plaintiffs’ litigation practice, our media practice recently has acted for consortia of various media outlets in seeking access to the Information to Obtains (the ITOs) in several public interest cases including the alleged Via Rail bombing plot; Project Traveller, a Toronto “guns and gangs” investigation; Project Brazen 2, the drug and extortion investigation implicating

Canada has an open courts system, which is meant to ensure accountability through transparency. Public oversight is essential to keep those in power honest and acting in the public interest. The open courts system is one of the hallmarks of a healthy democracy and one way in which Canada is distinguished from the repressive totalitarian regimes that plague the world. Access to court documents that should be publicly accessible is too often dependent on the whims of administrative staff, who seem to interpret the directions of their superiors depending on the case. There needs to be a clearer recognition from courts’ administration decision makers that the public should not have to suffer through delay and expense to get access to public court documents.

How involved are Canadian courts in protecting freedom of expression?

Our courts play a vital role in balancing the need for an open and trans-

parent system with the countervailing interests such as privacy rights and the need to preserve an accused’s right to a fair trial by jurors capable of rendering an unbiased decision. The courts are also engaged in protecting people against false and damaging statements through the administration of defamation laws. Unfortunately, defamation suits can give rise to “libel chill,” where unmeritorious lawsuits are brought to block or discourage legitimate and important free expression. Just the cost of defending a lawsuit, let alone the possibility of suffering an award of damages, often deters poorly funded public interest groups such as NGOs from exercising their legitimate right to free speech. The pernicious damage these “SLAPPs” (strategic litigation against public participation) do to free expression has been recognized by anti-SLAPP legislation in Quebec and many U.S. states, and it is being contemplated in Ontario [see “Anti-SLAPP Bill Stalled,” page 22]. Hopefully, in spite of intense lobbying by big business interests against antiSLAPP legislation, Ontario will follow through and pass this important bill.

What other cases are you involved in? First, I want to

recognize Phil Tunley, who has been spearheading CJFE’s court challenge to prevent police officers from impersonating journalists. I, along with our firm’s media group, am also working on an important copyright matter, and cases where we are seeking to protect academic freedom.

Is there anything else you want to add? Without the media’s considerable investment of time, money and resources in defending freedom of expression, the public would be without much of the information it needs to make informed comment and those vital election day decisions. In addition, many groundbreaking Canadian defamation cases were the result of the media’s defence of freedom of expression. 

CJFE REVIEW 2014 37

Q&A: Protecting Your Rights  

Four Canadian defenders of free expression discuss their work and how other Canadians can get involved

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